OSHA HAS ARRIVED – WITH A CAMERA AND CLIPBOARD – OH MY?!?!!?! WE ARE NOT IN KANSAS ANYMORE!
It is a normal Friday morning. The workplace is slowing down for the weekend, and most of management is off work for a long weekend. About 9:00 a.m. you are notified that a visitor has arrived in HR – you aren’t expecting a visitor – is it a vendor trying to sell you something? NO – it is an OSHA inspector?!?!?!?! What do you do if an OSHA inspector shows up to your workplace? This article will provide you with some tips to be prepared when this occurs.
OSHA has a right to inspect your workplace.
It is highly unlikely that you will ever have advance notice of an OSHA inspection. Technically, OSHA cannot enter private premises for inspection purposes unless it first obtains the employer’s consent or a valid warrant authorizing the inspection. Most inspections are based upon an employer’s consent and, if you believe it is best for OSHA to obtain a warrant prior to entering your workplace, it is recommended you seek legal counsel to assist you in that request.
Prior to OSHA showing up, you should have a plan in place as to what happens when OSHA does show up. It is important to have your team in place and for everyone on the team to know their roles. Pick a team that includes members of management from HR, operations, safety, maintenance, and other departments as deemed necessary. Have a back-up person in place in case someone from the team is out of the office. Determine if the company wishes to have an employee representative also available to participate in the inspection (if non-union). Once the team is in place, make sure that each member of the team has specific roles to perform during the inspection, e.g., one person takes pictures, one person takes notes, one person takes samples, etc.
Remember the basis of OSHA’s inspection abilities:
- Always request the OSHA Compliance Officer’s credentials.
- Always escort the Compliance Officer into a conference room away from the work site for the “opening conference.”
- Always ask for the specific reasons for the inspection.
- Although you cannot ask for the identity of the employee who filed a complaint with OSHA, you should be shown the complaint with the name of the complainant redacted.
The “Opening Conference”
- The inspection is an evidence-gathering expedition.
- The Compliance Officer should explain the purpose of the inspection: imminent danger, a complaint, a fatality, an amputation, a hospitalization, or to conduct a programmed health or safety inspection.
- The Compliance Officer should explain the scope of the inspection: private employee interviews, physical inspection of the workplace and records, environmental testing, and video and still pictures.
- If a union represents the employees, the Compliance Officer will request that a union representative be brought in to fulfill the role of the employee representative; otherwise, the Compliance Officer will interview employees generally.
- Make sure the Compliance Officer has all PPE necessary and is informed of any hazards.
- Identify trade secrets to the Compliance Officer and ensure the Compliance Officer has proper clearance to enter restricted areas.
- The Compliance Officer will make document requests at this time and throughout the course of the inspection. Often, requests for documents and files will be made even after the inspection but prior to the issuance of citations.
- Always accompany the Compliance Officer and ask questions!
- Always accompany the Compliance Officer equipped with a camera and/or video camera to take still pictures or video side-by-side as the inspector.
- If the Compliance Officer collects samples, such as soil, air, or other materials, collect your own samples there, too.
- Never agree with a statement of violation by the Compliance Officer. Exercise discipline and do not nod your head or make short remarks that could be interpreted as an agreement.
- Train management, including supervisors, that when OSHA is inspecting, it is there to gather evidence for violations, not consult the company to improve safety.
- Take extensive notes.
- Sit in on the Compliance Officer’s interviews with management personnel.
The “Closing Conference”
- Always have a closing conference to find out what the Compliance Officer expects in the citations.
- However, what the Compliance Officer says in the closing conference is not binding.
- Take extensive notes.
- You have 15 working days from the date of receipt to contest the citations.
- You are offered the opportunity to have an informal conference with the OSHA Area Director. This is not a requirement. It is unlikely that OSHA would be willing to withdraw citations at an informal conference; more often than not, these are used to obtain a penalty reduction or payment plan. It is recommended that you seek legal counsel if you intend to contest the citations.
Following these tips will help ensure that you stay in “Kansas” and do not get off track when OSHA suddenly arrives at your workplace. However, if an inspection occurs due to a fatality, hospitalization and/or amputation, it is highly recommended that you seek legal counsel to assist you throughout the inspection process. Inspections as a result of those incidents will more than likely lead to citations against the company with significan monetary penalties.